STATE OF RAJASTHANversusDAUL@ DAULAT GIRI

                                          [2009] 7 S.C.R. 939


                                      STATE OF RAJASTHAN                             A
                                                  v
                                       DAUL@ DAULAT GIRi
                                   Criminal Appeal No.18 of 2003
                                           APRIL 28, 2009
                                                                                     B
                           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                                        GANGULY, JJ.]
         ,.,              Narcotic Drugs and Psychotropic Substances Act, 1985
                    - ss. 8 and 18 - Respondent allegedly found in possession
                    of contraband opium - Contraband samples collected for c
                    chemical analysis - PW1, SHO deposited the samples with
                    PW8, the Malkahna In-charge, who handed over the same to
                    PW5 - PW5 reached the Superintendent of Police office and
                    gave the samples to 'J' at 10:00 a.m. and received back the
                    samples from 'J' at 5:00 p.m the very same day and submitted D
         ...        the same with FSL - Conviction of respondent by trial court -
                    Set aside by High Court on the premise that non-examination
                    of 'J' rendered the prosecution version unacceptable -
                    Justification of - Held: On facts, not justified - Role of 'J' was
                    very limited; that is receiving sample at 10:00 a. m. and handing E
                    samples back at 5:00 p.m. on the very same day - Non-
                    examination of 'J' did not affect the veracity of the prosecution
                    version in any manner- No material to support the conclusion
                    of High Court that there was possibility of tampering with the
                    samples - FSL report clearly stated that the seals were intact
                    and matched with the specimen seals - Judgment of trial court F
                    restored.
                         According to the prosecution, pursuant to receipt of
                    secret information by PW1, SHO, the accused-respondent
                    was encircled and then searched by the police party, on G
                    which he was found to be carrying about 6 kgs of opium.
               ..
..   ~              The trial court convicted the respondent under ss.8 and
                    18 of the Narcotic Drugs and Psychotropic Substances
                    Act, 1985. Respondent filed appeal before the High Court
                                                 939                                 H
    940      SUPREME COURT REPORTS                 [2009] 7 S.C.R.


A which set aside the conviction on the premise that
  samples of the contraband opium, which were collected
  for purposes of chemical analysis, were in custody of one
  'J' and non-examination of the said 'J' rendered the
  prosecution version unacceptable.
B         Challenging the acquittal of the respondent, the State
    contended before this Court that the non-examination of
    'J' was not fatal to the credibility of the prosecution version
    and that the entire scenario starting from seizure of the
    samples till their receipt at the Forensic Science
c   Laboratory(FSL) and the report thereafter clearly proved
    that the samples were not only sealed but were also kept                    i:
    in proper and safe custody and hence there was no
    question or possibility of any tampering as concluded by
    the High Court.
D
          Allowing the appeal, the Court
                                                                          ~


       HELD: The factual scenario goes to show that PW1
  seized the articles and deposited the seized articles and
  samples with PWS who was the Malkahna In-charge. PWS
E handed the material to PW5 for depositing the sample in
  FSL. PW 5 reached the Superintendent of Police office
  and gave the samples to 'J' at 10:00 a.m. and received
  back the samples from 'J' at 5:00 p.m the very same day
  and also obtained forwarding letter. PW5 submitted the
F samples  in FSL and obtained acknowledgement receipt.
  The role of 'J' is very limited; that is receiving sample at
  10:00 a.m. and handing samples back at 5:00 p.m. It is
  not understandable as to how the non-examination of 'J'
  in any way affected the veracity of the prosecution
  version. The High Court came to an abrupt and
G
  unsustainable conclusion that because 'J' was not
  examined "possibility of the sample having been
  tampered with could not be ruled out." The conclusion is
                                                                      ~   .   ,....
  unsustainable in view of the FSL report which clearly
  stated that the seals were intact and matched with the
H
            STATE OF RAJASTHAN V DAUL @ DAULAT GIRi           941


     specimen seals. There is no material to support the A
     conclusion of the High Court that there was possibility of
     tampering with the samples. Looked at from any angle,
     the judgment of the ·High Court is unsustainable and is
     set aside and that of the trial court is restored. [Paras 7, 9,
     10] [944-B-F; 945-A-B]                                         B
           Hardip Singh vs. State of Punjab 2008 (8) SCC 557 -
     referred to.
                        Case Law Reference
          2008 (8) sec 557         referred to       Para 8         c
          CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
     No. 18 of 2003
          From the Judgment and Order dated 22.11.2001 of the
     Hon'ble High Court of Judicature for Rajasthan at Jodhpur in   D
     Criminal Appeal No. 615 of 1997
          Manish Singhvi, Milind Kumar, for the Appellant.
          Indra Makwana, for the Respondent.
          The Judgment of the Court was delivered by                E
          DR. ARIJIT PASAYAT, J.
           Challenge in this appeal is to the judgment of the learned
     Sessions Judge of Rajasthan High Court at Jodhpur directing
     acquittal of the respondent who faced trial for alleged F
     commission of offence punishable under Sections 8 and 18 of
     the Narcotic Drugs and Psychotropic Substances Act, 1985 (in
     short 'NDPS Act') and was convicted by learned Special Judge,
     NDPS cases, Chittorgarh in Sessions Case No. 252/97 (48/
     95). The trial Court convicted him to undergo sentence for ten G
     years rigorous imprisonment and to pay fine of Rs.1,00,000/-
     with default stipulation.
          Prosecution version as held during trial was that the
     respondent was found to be in possession of merely 6 Kg. of
..   opium. PW.1 Jaswant Singh, SHO, Police Station Kanera          H
    942      SUPREME COURT REPORTS                 [2009] 7 S.C.R.


A       District Chittorgarh prepared a Parchakayami (Ex.P/7) on
  15.6.1995 at about 7.15 p.m. stating inter-alia that on 15.6.1995
  at about 2.00 p.m., he received a secret information from
  mukhbir to the effect that on that day before 6.00 p.m .. one
  person, namely, Daul Giri (present accused respondent) S/o
B Madhugiri, resident of Shamkhdo Ka Kheda having opium in
  his possession would pass through Palchha Ghata on foot from
  the village Badawali. That information was reduced into writing
  by Jaswant Singh (PW.1) and the same is Ex. P/2 and apart
  from this, that information was also produced in Rojnamcha Ex.Pl
c 1A. The copy of the secret information was also sent by Jaswant
  Singh (PW.1) to superior officer Dy. PP Khetdan (PW.13) and
  Khetdan (PW.13) was also requested to come and join the
  raiding party. Thereafter, Jaswant Singh (PW.1) alongwith
  Khetdan(PW.13), Manikant (PW.12), Reader of Dy. SP and other
D police officials and one independent motbir Parbat Singh (PW.6)
  proceeded towards the spot in a Government vehicle at about
  4.0o p.m. and at about 4.15 p.m., they reached Badawali-
  Pallchha Road and made Nakabandi and during Nakabandi,
  at about 5.00 p.m., they saw one person having gunny bag on
  his head coming on foot from Badawali and he was encircled
E and on being asked, he told his name as Daul Giri (present
  accused respondent). Thereafter, the accused was informed
  about the secret information that he had contraband opium and,
  therefore, he was to be searched. Before making search, the
  accused appellant was given a notice Ex.P/3 under the
F provisions of Section 50 of the NDPS Act asking him whether
  he wanted to be searched before the Magistrate or Gazetted
  Officer and upon this, the accused gave his consent that he could
  be searched by Jaswant Singh (PW.1 ). Thereafter, he was
  searched in presence of two motbirs, namely, Khetdan (PW.13)
G and Parbat Singh (PW.6) and during search; from the gunny
  bag, plastic bag containing black-brown substance was
                                                                      .. •   t
  recovered and on being tested, it was assessed that it was
  nothing but contraband opium and on being asked, the accused
  told that he had no valid licence to keep that opium. On being
H weighed, its weight was found to be 6 k.g .. out of which, two
                        STATE OF RAJASTHAN V.                       943
                DAUL @ DAULAT GIRi [DR. ARIJIT PASAYAT, J.]

        samples of 30 grams each were taken for the purposes of A
        chemical analysis and sealed separately on the spot and
        marked as A/1 and A/2 and the remaining opium was also
        sealed separately on the spot and marked as A. The fard-of
        search and seizure was prepared on the spot by Jaswant Singh
        (PW.1) and the same is Ex.P/4. The fa rd of specimen B
        impression of seal is Ex.P/5. The accused was arrested through
        arrest memo Ex.P/6. Thereafter regular FIR Ex.P/8 was chalked
        out. Jaswant Singh (PW.1) handed over the seized articles and
        samples to Malkhana lncharge Bhanwarlal (PW.8), who
        deposited the same in the Malkhana and made entries in the c
        Malkhana Register Ex.P/15A. Thereafter, one sample was
        handed over by Bhanwarlala (PW.8) to Surendra Singh (PW.5)
        for the purpose of depositing it in the FSL, Jaipur and Surendra
        Singh (PW.5)first took the sample to SP office, .Chittorgarh and
        after obtaining a forwarding letter Ex.P/12 dated 20/6/1995 from
                                                                         0
        SP office, Chittorgarh, he deposited that sample in FSL, Jaipur
        and obtained receipt Ex. P/13 dcited 21/6/1995. The FSL report
        is Ex. P/16 in which it was reported that the sample contained
        in the packet marked A/1 gave positive tests for the chief
        constituents of the coagulated juice of opium poppy having 3.6
        % (Three point six percent) morphine.                            E

             After investigation, charge-sheet was filed and as the
        accused pleaded to be innocent and trial was held in support of
        the prosecution version 14 witnesses were examined. The trial
        Court held that the accusation was established and, as indicated   F
        above, convicted him.

              In appeal the only stand of the respondent which weighed
        with the High Court was that on the day when the samples were
        in the custody of one Jamnalal, the non-examination of aforesaid
        Jamnalal rendered the prosecution version unacceptable.            G
•   4
        Accordingly, the conviction was set aside and the respondent
        was directed to be acquitted.
             In support of the appeal, learned counsel for the appellant
        - State submitted that the non-examination of Jamnalal could
                                                                           H
    944        SUPREME COURT REPORTS                    [2009] 7 S.C.R


A   not be fatal to Hie credibility of the prosecution version. In fact
    the entire sceni'lrio starting from the seizure of the samples till
    their receipt at the Forensic Science Laboratory (in short FSL)
    and the report thereafter clearly proves that the samples were
    not only sealed but were also kept in proper and safe custody.
B   According to him when the seal is intact, there is no question or
    possibility of any tampering as was held by the High Court. No
    one appeared for the respondent though notice has been served.

        The factual scenario goes to show that Jaswant Singh
  (PW.1), the 1.0., seized the articles on 15/6/1995. The search
C memo is Ex. P.4 and the specimen impression of the seal Ex.
  P.5. PVV.1 deposited the seized articles and sample with
  Bhanwarlal (PW.8) who was the Malkhana In-Charge in the
  Malkhana register in Ex. P.15A. PW.8 handed the material to
  Surendera Sirigh (PW.5) for depositing the sample in FSL. PW.5
D reached the Superintendent of Police office and gave the
  samples to Jamnalal at 10.00 a.m. and received back the
  samples from Jamnalal at 5.00 p.m. and also obtained
  forwarding letter which is Ex. P.12 and is dated 20/6/95. PW.5
  submitted the samples to FSL and obtained acknowledgment
E receipt it is Ex. P.13. The role of Jamnalal is very limited; that is
  receiving sample at 10.00 a.m. and handing samples back at
  5.00 p.m. It is not understandable as to how the non-examination
  of Jamnalal in any way affected the veracity of the prosecution
  version. The High Court came to an attempt and unsustainable
F conclusion that because Jamnalal was not examined "possibility
  of the sample having been tampered with could not be ruled
  out". The conclusion is unsustainable in view of the FSL report
  which clearly stated that the seals were intact and matched with
  the specimen seals.
G         In Hardip Singh vs. State of Punjab (2008 (8) SCC 557)
    it was held that when the seals are intact even in delay in sending
    the seals to the Laboratory is not in fatal to the prosecution case.
                                                                           ..
        In the instant case the position stands on a much better
H footing. There was in fact no delay and in fact the samples which
                                STATE OF RAJASTHAN V. -                . 945
                        DAUL @ DAULAT GIRi [DR. ARIJIT PASAYAT, .J.]

               were kept in the SP office were received back on the very same A
               day. There is no material to support the conclusion of the High
               Court that there was possibility of tampering with the samples.
               The observation as noted above clearly overlooks the clear
               statement of the FSL report that the seals were intact.         ·
                     Looked at from any angle, the judgment of the High Court 8
               is unsustainable and set aside and that of the trial Court is
               restored. The respondent shall surrender to custody to serve
               out the remainder of sentence.

                    The ~ppeal is allowed.

               8.8.8.                                       Appeal allowed.




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